Children and Domestic Violence

Custody and Visitation Orders

If your child's other parent has been abusive to you or your children, it is very important for you to protect yourself and your children, and find a parenting plan that will help you all stay safe.

  • For protection, you can ask the court for a restraining order to protect you and your children. You can ask for custody, visitation (also called "parenting time"), and child support orders at the same time. Read Asking for a Domestic Violence Restraining Order for information and instructions.

You may want to talk with a lawyer to find out the best legal way for you to move forward. In most cities and counties in California, there are domestic violence agencies that can provide you legal help with your custody issues. You can contact the National Domestic Violence Hotline and ask them for domestic violence organizations in your area. Or click to find a legal aid agency in your area.

  • Read Custody and Visitation—Basics to learn about the different types of custody and visitation orders a court can make. While you read the information, keep in mind that there are special rules for domestic violence cases.


Custody Laws and Domestic Violence

There are laws that deal with custody and visitation rights of parents in cases of domestic violence. First, the judge must decide if there is domestic violence, and if there is, the judge must follow special rules to decide custody of the children.

The judge will treat your case as a domestic violence case if, in the last 5 years:

  • A parent was convicted of domestic violence against the other parent;
                           OR
  • Any court has decided that 1 parent committed domestic violence against the other parent or the children.

Usually, when a judge decides that your case is a domestic violence case, the judge CANNOT give custody (joint or sole custody) to the parent who committed domestic violence. But that parent can get parenting time with the children (visitation rights).

A judge CAN give joint or sole custody to the parent who committed domestic violence if the parent who was abusive:

  • Proves to the court that giving joint or sole custody of the children to him or her is in the best interest of the children;
  • Has successfully completed a 52-week batterer intervention program;
  • Has successfully completed substance abuse counseling if the court ordered it;
  • Has successfully completed a parenting class if the court ordered it;
  • Is on probation or parole and has complied with the terms of probation or parole;
  • Has a restraining order against him or her and has followed the orders; and
  • Has NOT committed any further domestic violence.

Read the law about child custody in cases of domestic violence.

Talk to a lawyer about how the law will affect your rights to custody and visitation of your children, whether you are the victim of the domestic violence or the one who committed the abuse. Understanding what the law says and how it applies to your situation can be confusing and there are important rights at stake.  Click for help finding a lawyer.

Custody Mediation in Cases of Domestic Violence

If you and your children's other parent do not agree on a parenting plan for your children, you will have to go to custody mediation (referred to in some courts that provide recommendations as “child custody recommending counseling”) .

In mediation, a "mediator" (or "child custody recommending counselor") tries to help you and the other parent with making a parenting plan for your children. A parenting plan says who the children live with and who makes important decisions for the children.

Mediators work for the courts. They help parents make parenting plans that are good for the children. Mediators know how to work with separated couples, and they are trained to understand domestic violence. If you are worried about your safety or your children's safety, tell the mediator. You can ask to speak with the mediator alone. If there is a restraining order in your case or 1 parent is accusing the other of domestic violence, you have a right to meet separately with the mediator.  You can also bring a support person with you to mediation and mediation orientation.


The mediator's role

The mediator will try to help you make a parenting plan that:

  • Protects you and your children;
  • Says how you and the other parent will make decisions about the children; and
  • Says when the child will be with each parent.

Mediators can also help with a "safety plan" for you and your children. They can suggest safe ways to get the children to and from visits with the other parent. Mediators can also tell you about getting help with housing, counseling, or financial problems.

Guidelines for mediation

  • Usually, mediators interview both parties together. BUT in cases where there is domestic violence or a restraining order between the parents, you have the right to meet with the mediator separately from the other parent if you ask. The mediators are trained in the dynamics of domestic violence to protect your safety and any household member.
  • If you have a restraining order, you can bring a support person to your mediation. If you do not have a restraining order but you are afraid of the other parent or intimidated by him or her, you can ask your mediator if a support person can come with you.
  • Some mediators will interview children if it will help the parents to develop a parenting plan that is best for the children. Mediators are trained professionals and know how to interview children without making them choose between their parents or putting them in the middle.

Confidentiality of mediation

  • In mediation, what you say to the mediator when the other parent is not present is NOT confidential as far as the other parent goes. The mediator can tell the other parent what you say.
  • In terms of confidentiality beyond you and the other parent, it depends on the rules of the court in your county.  In some counties what you say is confidential, and it will stay between you and the mediator and the other parent. The other parent cannot use it in court proceedings.
  • In other counties, mediators make "recommendations" to the judge when the parents do not reach an agreement in mediation. In the report, the mediator may include what you say in mediation. The report is given to you and is sent to the judge and to the other parent and his or her attorney.  But it is confidential as far as anyone else goes.
  • If a mediator suspects child abuse, he or she may need to report this to child protective services.

To make sure you completely understand the rules in your mediation, ask your mediator to explain the confidentiality/privacy rules.

For your mediation

If you have experienced domestic violence:

  • Tell your lawyer, if you have one.
  • Tell your mediator as soon as possible.
  • Tell the person setting up your mediation appointment so that separate sessions (for you and for the other parent) can be set up.
  • Answer all of the judge or mediator's questions about this issue.
  • Remember, you can see the mediator without the other parent AND you can bring a support person with you to your mediation.

If a mediator suspects child abuse, he or she may need to report it. (It is a crime for a parent to file a false report of child abuse against the other parent.) Ask your mediator for a list of places that can help you and your children.

Talk to your mediator about parenting plans that include:

  • Supervised visitation;
  • Detailed parenting plans that can help you and the other parent avoid conflict;, and
  • Safe places to drop off or pick up the children.

"Supervised visitation" means the children can visit the other parent if another adult is present. Supervised visitation is often a good idea in cases where there is a history or allegations of domestic violence, child abuse and neglect, or substance abuse. It is also used when there is a threat that 1 parent may kidnap the child. If you are worried about this, tell your mediator and the judge.

If the judge orders supervised visitations, the court order will specify the time and duration of the visits. Sometimes, the court order will also say who the provider (of the supervised visitation) is to be and where the visits are to take place.

  • Ask your mediator if there is a "supervised visitation center" where you live. If there is no center in your area, talk with your mediator about other options. Learn more about Supervised Visitation.

Effects of Domestic Violence on Children

Domestic violence can have very harmful effects on children. First, when there is domestic violence in the home, children are at greater risk of being abused or neglected.

But even when they are not “directly” abused, children who witness violence and abuse by 1 parent against another can be affected in ways similar to children who are physically abused. Seeing or hearing violence at home can hurt children emotionally, psychologically, and even physically because of the stress they suffer.

Read more about how domestic violence hurts children in:

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